Citation Nr: 0937750
Decision Date: 10/05/09 Archive Date: 10/14/09
DOCKET NO. 07-18 234 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to compensation pursuant to 38 U.S.C.A. § 1151
for a seizure disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
J. Connolly, Counsel
INTRODUCTION
The Veteran had active service from January 1963 to October
1965.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2006 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina, which denied entitlement to
compensation pursuant to 38 U.S.C.A. § 1151 for a seizure
disorder. In August 2008, the Veteran testified before the
undersigned at a Travel Board hearing.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant
if further action is required.
REMAND
Compensation shall be awarded for a qualifying additional
disability or a qualifying death of a veteran in the same
manner as if such additional disability or death were
service-connected. For purposes of this section, a
disability or death is a qualifying additional disability or
qualifying death if the disability or death was not the
result of the veteran's willful misconduct and the disability
or death was caused by hospital care, medical or surgical
treatment, or examination furnished the veteran under any law
administered by the Secretary, either by a Department
employee or in a Department facility. In addition, the
proximate cause of the disability or death must be either
carelessness, negligence, lack of proper skill, error in
judgment, or similar instance of fault on the part of the
Department in furnishing the hospital care, medical or
surgical treatment, or examination; or an event not
reasonably foreseeable. 38 U.S.C.A. § 1151.
The Veteran contends that she began having seizures and
sought medical treatment initially with VA. She states that
she was not afforded proper treatment and VA failed to
diagnose and treat her seizure disorder. She indicated that
VA examiners told her that she had an anxiety disorder, but
no seizure disorder. The Veteran maintains that she then
sought treatment from a private neurologist, F.O.P., Jr.,
M.D., who diagnosed her as having a seizure disorder,
currently characterized as epilepsy.
A review of the record discloses that the Veteran was
initially seen by Dr. P. in April 2004, for complaints of
seizure-type activity which had occurred over the past 6
months. At that time, she stated that she had been seen and
treated by VA for her complaints. A review of the record,
however, reveals that the VA records are only dated from
January 2005 onward. Thereafter, in January and February
2005, she maintains that she went to VA, but was not
diagnosed as having a seizure disorder. The VA records from
those dates have been obtained and reflect that she was seen
for complaints of seizure-type activity; however the VA
examiner felt that her complaints were more likely anxiety or
panic attacks. The Veteran then stated that she went to Dr.
P. and received a diagnosis from him. Dr. P.'s records show
that the Veteran was treated in April 2005.
Electroencephalograph and magnetic resonance imaging reports
were abnormal. She was diagnosed as having a generalized
tonic clonic seizure disorder. The diagnosis has since been
amended to include epilepsy.
The Veteran asserts that the failure of VA to diagnose her
with a seizure disorder, and to misdiagnose her as only
having an anxiety disorder, resulted in additional
disability. Specifically, she contends that her seizure
disorder worsened and she also fell and injured her left leg.
She claims that Dr. P. told her that she had received a
misdiagnosis.
When reference is made to pertinent medical records,
especially records in VA's possession, VA is on notice of
their existence and has a duty to assist the veteran to
attempt to obtain them. See Ivey v. Derwinski, 2 Vet. App.
320, 323 (1992); see also Jolley v. Derwinski, 1, Vet. App.
37 (1990). As noted, VA records predating 2005 are not of
record. Of particular interest are VA records dated from
2003-2004. These records should be obtained in compliance
with VA's duty to assist.
Further, because this case presents complex medical and
unresolved factual questions and since the Board is precluded
from reaching its own unsubstantiated medical conclusions,
further development is required and the Veteran should be
afforded a VA examination. See Jones v. Principi, 16 Vet.
App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546,
553 (1996) (en banc); Colvin v. Derwinski, 1 Vet. App. 171
(1991).
Accordingly, this matter is REMANDED for the following
actions:
1. Obtain and associate with the claims
file copies of all clinical records,
which are not already in the claims file,
of the Veteran's VA treatment from 2003-
2004.
2. Schedule the Veteran for a VA
examination. The examiner should review
the claims folder prior to examination.
The examiner should opine as to the
following:
(1) Did the Veteran sustain any
additional disability either
directly or through aggravation of
her preexisting condition, as a
result of the claimed failure of VA
to diagnose her as having a seizure
disorder and to only diagnose her as
having an anxiety disorder during
the timeframe from 2003 through
April 2005 when she was diagnosed as
having a seizure disorder by Dr. P.?
If so, what is that additional
disability;
(2) If such additional disability
was sustained, was it the result of
carelessness, negligence, lack of
proper skill, error in judgment, or
similar instance of fault on the
part of VA in furnishing the failure
to diagnose or the misdiagnosis of
her seizure disorder;
3) Did VA fail to exercise the
degree of care that would be
expected of a reasonable health care
provider; and
(4) Was the proximate cause of any
additional disability an event not
reasonably foreseeable?
The examiner should provide a complete
rationale for all opinions expressed and
conclusions reached.
3. The AMC should then readjudicate the
claim on appeal in light of all of the
evidence of record. If the issue remains
denied, the Veteran should be provided
with a supplemental statement of the case
as to the issue on appeal, and afforded a
reasonable period of time within which to
respond thereto.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The appellant has the right
to submit additional evidence and argument on the matter or
matters the Board has remanded. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________________
MATTHEW D. TENNER
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2008), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2008).